The following is a guest post from Travis Crum:

The 2020 redistricting cycle is well under way. As in past cycles, redistricting suits have targeted statewide maps. That makes sense, as the stakes are higher and voting rights litigation is costly, time intensive, and complex. But in this post, I want to focus on redistricting at the local level. In particular, I highlight the potential for Shaw claims being brought against city- and county-level redistricting plans.

Under Shaw’s racial gerrymandering cause of action, if race predominates during the redistricting process, then the challenged district must survive strict scrutiny. Shaw claims first emerged in the 1990s as a tool to dismantle majority-minority districts. In the 2010s, Democratic and Black plaintiffs flipped the doctrine on its head and used it against districts that packed Black voters in the South. I’ve predicted in a recent article that, in the 2020 cycle, Democratic Party backed plaintiffs may seek to use Shaw against crossover districts to further spread out minority voters without endangering the constitutionality of Section 2 of the Voting Rights Act—that is, because Section 2 does not mandate the creation of crossover districts.

So why might Shaw be relevant at the local level? To put it bluntly, the redistricting process in many cities is an intra-party fight that breaks down along racial lines. Here’s two examples from major cities this cycle.

In St. Louis, a voter-approved proposition forced the city to reduce the number of aldermanic districts from 28 to 14, a massive reduction that set off a scramble for power. When the reduced-ward plan was unveiled, the Aldermanic President was candid that the new map was intended to “have as closely as possible an equivalent number of wards” that would likely be won by White and Black candidates. And although the city is roughly divided between White and Black residents, one can easily see this quote finding its way into a judicial opinion condemning the plan for overt racial balancing.

Or consider Chicago’s ongoing redistricting saga. During the past decade, Chicago’s Black population shrank by ten percent while its Hispanic population increased five percent. These demographic changes have pitted the City Council’s Black and Latino Caucuses against each other. As can be seen in the various maps that have been proposed, the Black Caucus is trying to minimize its losses while the Latino Caucus is seeking a bigger slice of the redistricting pie.

What would happen if a Shaw claim were brought against one of these plans? A go-to defense in a Shaw case is to assert that party—not race—motivated the map. But that argument is off the table in deep-blue Democratic cities.

Now, as a practical matter, the progressive and moderate wings of the Democratic Party may be racially polarized in some cities. Take, for example, the 2010 DC mayoral election between Adrian Fenty and Vincent Gray, which might be familiar to this blog’s readers. Both candidates in the Democratic primary were Black, but Fenty was the clear candidate of White voters whereas Gray was heavily favored by Black voters. The 2021 St. Louis mayoral election also showed signs of racial polarization. A city may argue that its map reflects party factions, but I am skeptical that courts would accept an “intra-party not race” explanation—a point, frankly, that should make us seriously question whether “party not race” is a satisfactory distinction.

Another defense against a Shaw claim is that the mapmaker had a strong basis in evidence to believe that a district was mandated by Section 2. But cash-strapped cities are less likely than States to have the resources or personnel to conduct such studies. Mere assertions that voting is racially polarized are not going to convince courts that the city did its due diligence.

I am unaware of any Shaw challenges filed against local-level plans so far this redistricting cycle, but it is admittedly early. And only a handful of Shaw challenges against city or county maps were filed during the 2010 cycle. So why flag this issue now? Well, here’s two reasons: one a cynical prediction, the other more optimistic.

First, it does not stretch the imagination to envision an intra-party Shaw suit in, say, Chicago or another big city. This development would be a novel use of Shaw and would further exemplify that doctrine’s plasticity. Such a suit might endanger Section 2’s constitutionality, but the challengers could follow the path set in Bethune-Hill and concede that the VRA is a compelling governmental interest.

Second, Shaw could be harnessed for reform. Advocates seeking to experiment with new forms of municipal government could bring Shaw claims to shake-up the political system. Once liability has been found, reformers could push for remedies or settlements that move away from territorial-based redistricting at the local level. Thus, Shaw would help transform cities into laboratories of democracy

Election law nerds might notice a deep irony here. In his ground-breaking Holder v. Hall concurrence, Justice Thomas dismissed the reform proposals of voting rights scholars Pam Karlan and the late Lani Guinier. Justice Thomas argued that vote-dilution claims are “questions of political philosophy, not questions of law” and that “all that is required for districting to fall out of favor is for Members of this Court to further develop their political thinking.” Instead of using Section 2 vote-dilution claims to achieve these reforms, advocates could embrace Shaw—one of Justice Thomas’s favorite doctrines.